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How Neuroscience Is Changing the Law
As neuroimaging labs use scanners to reveal more and more details about how the brain works, their findings are increasingly affecting the legal system.
As leading-edge neuroimaging labs use scanners to reveal more and more details about how the brain works, their findings are increasingly affecting other fields as well. The legal system, in particular, is now being forced to assess the potential implications of new information about how issues relating to crime and punishment are processed in the brain.
In 2007, a $10 million grant from the MacArthur Foundation created the Law and Neuroscience Project, a multi-university consortium. Vanderbilt University professor Owen Jones, a leading neurolaw scholar and director of this MacArthur Foundation project spoke with Big Think about the implications of putting the brain on the stand.
“Things are very actively in flux,” says Jones. "Neuroscience is an area of really rapid growth in not only the ability of imaging, but also in the methodological techniques for extracting relevant information from all this data. ... The legal system will inevitably lag behind. And in fact often we want that to be the case. The question is how far behind and with what consequences.”
Culling from research and court cases, Jones shared six ways neuroscience is shaping the law:
Third-Party Judging: Researchers are interested in which neural structures and synapses help us decide to dole out punishment or clemency. "How do people actually go about deciding what’s wrong, why is it wrong, who should be punished, and how much they should be punished," asks Jones. Determining this could have implications that would inform jury selection and perhaps explain punishment biases in sentencing.
Jones and his colleagues conducted a 2008 study that scanned participants with fMRI while they determined the appropriate punishment for crimes that varied in responsibility and severity. The researchers found that activity in the amygdala and areas of the medial cortex predicted the magnitude of punishment while brain activity in the right side of the prefrontal cortex was at work in distinguishing among scenarios of criminal responsibility.
Neural Lie Detection: The 2010 court case U.S. v. Semrau was the first time in federal court a ruling was rendered on whether fMRI-based lie detection could be considered by a jury during a criminal trial. While the court ruled that it wasn’t suitable for introduction in that case, the issue is far from settled, according to Jones: “Lie detection is likely to be something pressing on the edges of the court system, in part because that particular ruling had no precedential value anywhere," he says. "It is from an entry-level trial court on the federal side, so it doesn’t bind any other federal courts. It also doesn’t have any binding value over any of the state courts, where most criminal trials are held.”
As well, this isn't simply a matter of courts adopting available technology. Looking for lies in the neural architecture remains an imperfect science. Promising findings that blood oxygenation level-dependent fMRI scans might reveal a lie instead seem to be sensitive to difference between a lie and a truth—a distinction of little help without being able to distinguish which is the lie and which is the truth.
The larger issue, Jones says, is “what would it take, what threshold should one establish ahead of time as here is what it would need to be, here are the features it would need to have, before we would consider it admissible.”
Mental States: “Are some groups—like addicts, like children—more likely when they engage in prohibited behavior to be in one mental state instead of another compared to the average population?” asks Jones, echoing the underlying question driving research that seeks markers in the brain that could signal specific mental states.
"Often in trial what matters is the jury deciding what mental state the defendant was in," says Jones. "There are typically four sort of rough mental states: purposefulness, knowing that’s not purposeful, recklessness, and then negligence. So it’s possible that addicts, for example, may be more likely than the average population to be in one mental state or another.” Brain-based markers that point toward disposition for one mental state over another might eventually inform how a jury determines the defendant's mental state in the midst of their crime.
Memory: The accuracy of memories is central to legal process in both civil and criminal courts. When the witness is asked,“Have you seen this face before?,” so much depends on he or she being both confident and accurate in what was seen. By studying the brain's reaction and retention of images, says Jones, researchers are building a better understanding of what makes memories more or less accurate and detailed.
Neuroscience is also revealing the effect of memory reconsolidation on the accuracy of memory. “Every time we call up a memory, and think about it, we now have a memory of thinking about that memory. And over time those memories can change,” say Jones. In this way, neuroscientists are learning about formation and reformation of neural pathways as memories are recalled again and again, syncing a memory not to a specific time but rather to the intervening period of recall.
The Adolescent Brain: Researchers are also interested in the development of the adolescent brain, says Jones: “How does the adolescent brain sync to behavior the law cares about, things like the ability to reflect on wrongfulness, the capacity to actually choose one course of action over another?"
Such research is directly tied to capacity. The question, Jones says, is whether or not there are ways in which we can use neuroscientific techniques to "meaningfully distinguish those who have a lot of capacity to control their behavior from those who have less".
The Brain-Based Appeal: On the criminal side, says Jones, brain scans are routinely being introduced in death penalty appeals. This trend has led to interest in applying what we know about the brain in an eventful moment (such as during a crime) to our knowledge of how the brain changes over time. Unlike DNA or fingerprints, the brain can change—and change greatly—as neural pathways strengthen or atrophy with age.
“It is really important to distinguish the brain of somebody who has been on death row for fifteen years from someone who committed the act that put them on death row,” says Jones. “Even if you found a brain abnormality, was that why the person committed the crime or was that the effect of being incarcerated on death row?”
As more and more is learned about the brain, many are wondering whether neuroscience will upset the legal system by fixing blame in neuron clusters while excusing the individual.
“I think that is an exaggeration,” says Jones. “Brain scans provide information about the mechanisms that affect human behavior. We already know there are a lot of mechanisms that affect human behavior," he says, citing genes, childhood rearing and injuries to the head, among others. "It is only in rare circumstances that we say that the existence of one particular feature or another automatically yields some legal conclusion in the culpability domain. ... Those pieces of information may be things that we weigh in the balance, but it is the rare case in which they are likely to be dispositive all by themselves."
— Langleben, D., "Detection of deception with fMRI: Are we there yet?"
— Jones, O. et al. "The Neural Correlates of Third-Party Punishment."
— Jones, O. et al., Rene, “Brain Imaging for Legal Thinkers: A Guide for the Perplexed.”
What conditions of the new normal were already appreciated widely?<p>First, we understand that higher education is unique among industries. Some industries are governed by markets. Others are run by governments. Most operate under the influence of both markets and governments. And then there's higher education. Higher education as an "industry" involves public, private, and for-profit universities operating at small, medium, large, and now massive scales. Some higher education industry actors are intense specialists; others are adept generalists. Some are fantastically wealthy; others are tragically poor. Some are embedded in large cities; others are carefully situated near farms and frontiers.</p> <p>These differences demonstrate just some of the complexities that shape higher education. Still, we understand that change in the industry is underway, and we must be active in directing it. Yet because of higher education's unique (and sometimes vexing) operational and structural conditions, many of the lessons from change management and the science of industrial transformation are only applicable in limited or highly modified ways. For evidence of this, one can look at various perspectives, including those that we have offered, on such topics as <a href="https://www.insidehighered.com/digital-learning/blogs/rethinking-higher-education/lessons-disruption" target="_blank">disruption</a>, <a href="https://www.nytimes.com/2020/02/20/education/learning/education-technology.html" target="_blank">technology management</a>, and so-called "<a href="https://www.insidehighered.com/sites/default/server_files/media/Excerpt_IHESpecialReport_Growing-Role-of-Mergers-in-Higher-Ed.pdf" target="_blank">mergers and acquisitions</a>" in higher education. In each of these spaces, the "market forces" and "market rules" for higher education are different than they are in business, or even in government. This has always been the case and it is made more obvious by COVID-19.</p> <p>Second, with so much excitement about innovation in higher education, we sometimes lose sight of the fact that students are—and should remain—the core cause for innovation. Higher education's capacity to absorb new ideas is strong. But the ideas that endure are those designed to benefit students, and therefore society. This is important to remember because not all innovations are designed with students in mind. The recent history of innovation in higher education includes several cautionary tales of what can happen when institutional interests—or worse, <a href="https://www.insidehighered.com/news/2016/02/09/apollos-new-owners-seek-fresh-start-beleaguered-company" target="_blank">shareholder</a> interests—are placed above student well-being.</p>
Photo: Getty Images<p>Third, it is abundantly apparent that universities must leverage technology to increase educational quality and access. The rapid shift to delivering an education that complies with social distancing guidelines speaks volumes about the adaptability of higher education institutions, but this transition has also posed unique difficulties for colleges and universities that had been slow to adopt digital education. The last decade has shown that online education, implemented effectively, can meet or even surpass the quality of in-person <a href="https://link-springer-com.ezproxy1.lib.asu.edu/article/10.1007/s10639-019-10027-z" target="_blank">instruction</a>.</p><p>Digital instruction, broadly defined, leverages online capabilities and integrates adaptive learning methodologies, predictive analytics, and innovations in instructional design to enable increased student engagement, personalized learning experiences, and improved learning outcomes. The ability of these technologies to transcend geographic barriers and to shrink the marginal cost of educating additional students makes them essential for delivering education at scale.</p><p>As a bonus, and it is no small thing given that they are the core cause for innovation, students embrace and enjoy digital instruction. It is their preference to learn in a format that leverages technology. This should not be a surprise; it is now how we live in all facets of life.</p><p>Still, we have only barely begun to conceive of the impact digital education will have. For example, emerging virtual and augmented reality technologies that facilitate interactive, hands-on learning will transform the way that learners acquire and apply new knowledge. Technology-enabled learning cannot replace the traditional college experience or ensure the survival of any specific college, but it can enhance student learning outcomes at scale. This has always been the case, and it is made more obvious by COVID-19.</p>
What conditions of the new normal were emerging suspicions?<p>Our collective thinking about the role of institutional or university-to-university collaboration and networking has benefitted from a new clarity in light of COVID-19. We now recognize more than ever that colleges and universities must work together to ensure that the American higher education system is resilient and sufficiently robust to meet the needs of students and their families.</p> <p>In recent weeks, various commentators have suggested that higher education will face a wave of institutional <a href="https://www.businessinsider.com/scott-galloway-predicts-colleges-will-close-due-to-pandemic-2020-5" target="_blank">closures</a> and consolidations and that large institutions with significant online instruction capacity will become dominant.</p> <p>While ASU is the largest public university in the United States by enrollment and among the most well-equipped in online education, we strongly oppose "let them fail" mindsets. The strength of American higher education relies on its institutional diversity, and on the ability of colleges and universities to meet the needs of their local communities and educate local students. The needs of learners are highly individualized, demanding a wide range of options to accommodate the aspirations and learning styles of every kind of student. Education will become less relevant and meaningful to students, and less responsive to local needs, if institutions of higher learning are allowed to fail. </p> <p>Preventing this outcome demands that colleges and universities work together to establish greater capacity for remote, distributed education. This will help institutions with fewer resources adapt to our new normal and continue to fulfill their mission of serving students, their families, and their communities. Many had suspected that collaboration and networking were preferable over letting vulnerable colleges fail. COVID-19's new normal seems to be confirming this.</p>
Photo by Joshua Lott/Getty Images<p>A second condition of the new normal that many had suspected to be true in recent years is the limited role that any one university or type of university can play as an exemplar to universities more broadly. For decades, the evolution of higher education has been shaped by the widespread imitation of a small number of elite universities. Most public research universities could benefit from replicating Berkeley or Michigan. Most small private colleges did well by replicating Williams or Swarthmore. And all universities paid close attention to Harvard, Princeton, MIT, Stanford, and Yale. It is not an exaggeration to say that the logic of replication has guided the evolution of higher education for centuries, both in the US and abroad.</p><p>Only recently have we been able to move beyond replication to new strategies of change, and COVID-19 has confirmed the legitimacy of doing so. For example, cases such as <a href="https://www.washingtonpost.com/education/2020/03/10/harvard-moves-classes-online-advises-students-stay-home-after-spring-break-response-covid-19/" target="_blank">Harvard's</a> eviction of students over the course of less than one week or <a href="https://www.nhregister.com/news/coronavirus/article/Mayor-New-Haven-asks-for-coronavirus-help-Yale-15162606.php" target="_blank">Yale's apparent reluctance</a> to work with the city of New Haven, highlight that even higher education's legacy gold standards have limits and weaknesses. We are hopeful that the new normal will include a more active and earnest recognition that we need many types of universities. We think the new normal invites us to rethink the very nature of "gold standards" for higher education.</p>
A graduate student protests MIT's rejection of some evacuation exemption requests.
Photo: Maddie Meyer/Getty Images<p>Finally, and perhaps most importantly, we had started to suspect and now understand that America's colleges and universities are among the many institutions of democracy and civil society that are, by their very design, incapable of being sufficiently responsive to the full spectrum of modern challenges and opportunities they face. Far too many higher education outcomes are determined by a student's family income, and in the context of COVID-19 this means that lower-income students, first-generation students and students of color will be disproportionately afflicted. And without new designs, we can expect postsecondary success for these same students to be as elusive in the new normal, as it was in the <a href="http://pellinstitute.org/indicators/reports_2019.shtml" target="_blank">old normal</a>. This is not just because some universities fail to sufficiently recognize and engage the promise of diversity, this is because few universities have been designed from the outset to effectively serve the unique needs of lower-income students, first-generation students and students of color.</p>
Where can the new normal take us?<p>As colleges and universities face the difficult realities of adapting to COVID-19, they also face an opportunity to rethink their operations and designs in order to respond to social needs with greater agility, adopt technology that enables education to be delivered at scale, and collaborate with each other in order to maintain the dynamism and resilience of the American higher education system.</p> <p>COVID-19 raises questions about the relevance, the quality, and the accessibility of higher education—and these are the same challenges higher education has been grappling with for years. </p> <p>ASU has been able to rapidly adapt to the present circumstances because we have spent nearly two decades not just anticipating but <em>driving</em> innovation in higher education. We have adopted a <a href="https://www.asu.edu/about/charter-mission-and-values" target="_blank">charter</a> that formalizes our definition of success in terms of "who we include and how they succeed" rather than "<a href="https://www.washingtonpost.com/opinions/2019/10/17/forget-varsity-blues-madness-lets-talk-about-students-who-cant-afford-college/" target="_blank">who we exclude</a>." We adopted an entrepreneurial <a href="https://president.asu.edu/read/higher-logic" target="_blank">operating model</a> that moves at the speed of technological and social change. We have launched initiatives such as <a href="https://www.instride.com/how-it-works/" target="_blank">InStride</a>, a platform for delivering continuing education to learners already in the workforce. We developed our own robust technological capabilities in ASU <a href="https://edplus.asu.edu/" target="_blank">EdPlus</a>, a hub for research and development in digital learning that, even before the current crisis, allowed us to serve more than 45,000 fully online students. We have also created partnerships with other forward-thinking institutions in order to mutually strengthen our capabilities for educational accessibility and quality; this includes our role in co-founding the <a href="https://theuia.org/" target="_blank">University Innovation Alliance</a>, a consortium of 11 public research universities that share data and resources to serve students at scale. </p> <p>For ASU, and universities like ASU, the "new normal" of a post-COVID world looks surprisingly like the world we already knew was necessary. Our record breaking summer 2020 <a href="https://asunow.asu.edu/20200519-sun-devil-life-summer-enrollment-sets-asu-record" target="_blank">enrollment</a> speaks to this. What COVID demonstrates is that we were already headed in the right direction and necessitates that we continue forward with new intensity and, we hope, with more partners. In fact, rather than "new normal" we might just say, it's "go time." </p>
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